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2011-UP-076 - Johnson v. Town of Town of Iva

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Willie Johnson, William Wooten, Bronsil Metz, Robert Valentine, Johnnie Metz, Barbara Brown, Emogene Carver, Dennis Metz, Curtis Carver, Randall Shirley, Dorothy Smith, Louise McGill, Roy Graham, Furman Manlay, Henry Holley and Annette Holley, Appellants,

v.

Town of Iva, Iva City Council and Mayor Bobby Gentry (in their official capacities) and Anthony Burdette, Respondents.


Appeal From Anderson County
Alexander S. Macaulay, Circuit Court Judge


Unpublished Opinion No. 2011-UP-076
Heard September 16, 2010 – Filed February 24, 2011  


AFFIRMED AS MODIFIED


Donald Gist and John S. Nichols, both of Columbia, for Appellants.

Mary C. McCormac, of Clemson, for Respondents.

PER CURIAM: Willie Johnson and other property owners in the Town of Iva (Appellants) appeal the trial court's order granting summary judgment to the Town of Iva, Iva City Council, and Mayor Bobby Gentry (Respondents).  We affirm as modified. 

FACTS/PROCEDURAL HISTORY

In November of 2001, vendors contacted Shirley Powell, then Mayor of the Town, requesting late payment of the Town's bills.  Upon her inquiry, Town Clerk Anthony Burdette claimed he purchased items for his father-in-law's business using the Town's funds.  Powell further found the Town was in severe debt and did not have the revenue coming in to cover expenses.  She requested an investigation and hired certified public accountants to audit the Town for the fiscal year ending on June 30, 2001.  The auditor found the Town's finances were poorly kept and handled.  Due to several irregularities the auditor was unable to verify the exact amount of money missing or pinpoint the wrongdoing.  The auditor discovered the Town had an abundance of supplies it did not need and invoices for merchandise it did not need.  Taxes, water bills, and insurance premiums were not up to date.  In addition, people were allowed to make partial payments on their utilities.  The auditor found the Town had not paid state retirement since June 2000, had not paid federal and state withholding tax, had not filed quarterly payroll tax reports for 2001, and had not paid police remittance of fines to the state since October of 2000.  The Town had no cash to pay bills, books had not been kept since October of 2000, property tax notices had not been mailed, and other bills remained unpaid.  In addition, there was a substantial problem with the cemetery funds. 

In order to alleviate its financial problems, the Town passed an ordinance in February of 2002 increasing the water and sewer bills.  It adopted an ordinance to increase the property taxes by 21.1% in July 2002.  The increased property tax notices were mailed in September and October 2002. 

Appellants brought this action against Respondents on May 5, 2005. They asserted causes of action for negligence/gross negligence, civil conspiracy, fraud/misrepresentation, constructive fraud, conversion, breach of fiduciary duty, negligent supervision, and violation of the Freedom of Information Act.[1]  Respondents filed a motion for summary judgment, asserting, among other issues, Respondents were immune from liability under the South Carolina Tort Claims Act (the Act)[2] and the two-year statute of limitation for actions brought under the Act[3] had run.  Appellants asserted they had no notice of the Respondents' wrongdoing until they received a copy of a report from the South Carolina Law Enforcement Division (SLED) in early 2004 addressing the Town's alleged mismanagement. 

The trial court held Appellants' claims were barred by the statute of limitations.  The trial court rejected Appellants' argument that Respondents were estopped from asserting the statute of limitations.  In addition, it found Respondents had not violated the Freedom of Information Act.  It did not address Respondents' other issues.  Appellants filed a motion to alter or amend, which the trial court denied.  This appeal followed. 

LAW/ANALYSIS

Appellants argue the trial court erred in granting summary judgment on their claims.  We find Appellants' claims fall within the Act's exceptions to the waiver of immunity and thus fail as a matter of law.[4] 

The Act "is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of the employee's official duty."  S.C. Code Ann. § 15-78-200 (2005).  The courts must liberally construe the Act in favor of limiting the liability of the governmental entity.  Id.  The Act sets forth several exceptions to the waiver of liability.  It provides:

The governmental entity is not liable for a loss resulting from:

(1) legislative, judicial, or quasi-judicial action or inaction;

(2) administrative action or inaction of a legislative, judicial, or quasi-judicial nature;

. . . .

 (4) adoption, enforcement, or compliance with any law or failure to adopt or enforce any law, whether valid or invalid, including, but not limited to, any charter, provision, ordinance, resolution, rule, regulation, or written policies;

(5) the exercise of discretion or judgment by the governmental entity or employee or the performance or failure to perform any act or service which is in the discretion or judgment of the governmental entity or employee;

. . . .

 (11) assessment or collection of taxes or special assessments or enforcement of tax laws. . . .  

S.C. Code Ann. § 15-78-60 (2005) (emphasis added). 

The Act defines the word "loss" as

bodily injury, disease, death, or damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death, pain and suffering, mental anguish, and any other element of actual damages recoverable in actions for negligence, but does not include the intentional infliction of emotional harm.

S.C. Code Ann. § 15-78-30(f) (2005).

 Appellants asserted causes of action for negligence/gross negligence, civil conspiracy, fraud/misrepresentation, constructive fraud, conversion, breach of fiduciary duty, and negligent supervision.  They insisted in their memorandum opposing summary judgment that this is not a taxpayer action.  Thus, their claims are subject to the Act.  However, the only economic "loss" Appellants claim directly resulted from the increase in taxes and water/sewer bills.  Appellants alleged:  "As a result of the town's mismanagement, the town became insolvent and citizens have been subjected to increased property taxes and water and sewage bills."  The Town's enactment of ordinances increasing the taxes and water/sewer bills falls within the above-listed exceptions to liability.  We find the Act does not permit Appellants to establish tort liability by looking toward the reasons the Town may have enacted these ordinances when the enactment of the ordinances is clearly protected under the Act.  Accordingly, the Respondents are immune from Appellants' claims and summary judgment was appropriate. 

The order of the trial court granting Respondents' motion for summary judgment is

AFFIRMED AS MODIFIED. 

FEW, C.J., and HUFF and GEATHERS, JJ. concur. 


[1] S.C. Code Ann. §§ 30-4-10 to -165 (2007 & Supp. 2010).

[2] S.C. Code Ann. § 15-78-10 to -220 (2005 & Supp. 2010).

[3] S.C. Code Ann. § 15-78-110 (2005). 

[4]See Rule 220(c), SCACR (noting "[t]he appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal"); see also I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000).